Less redress

While Ross Dress for Less battles a Seattleite over custody of a coat, the accused wonders if it's a case of shopping while black.

The day after New Year's 1998, Demelash Ayalew bought himself a new tan coat at Ross Dress for Less at Third and Pike, Seattle. The 38-year-old Ethiopian immigrant liked the $100 coat so well he returned to the store two days later and shopped for another. Within minutes, he caught the eye of store security guards.

They would later say he was acting suspiciously, looking at coats in the women's department. Ayalew would say the coats looked like men's and more likely he caught their eye because he was shopping while black. The two sides would end up arguing these points for the next three years.

On the store security camera, Ayalew is seen trying on a black coat—which he decides not to get. He hangs it up and puts back on his slightly wrinkled, two-day-old tan coat. At the door, store security agents stop him.

Ayalew, who speaks English poorly, was unsure what they wanted. Escorted to a basement office, Ayalew was questioned about the tan coat.

The agents said they thought he stole it. Ayalew insisted it was his, he bought it at the store. The agents shook their heads. Sometimes shoplifters buy an item, then return to steal another just like it, using the original sales slip if questioned.

But Ayalew didn't have the slip with him. And he wasn't trying on a similar coat.

Nonetheless, the agents demanded his ID, photographed him, and asked him to sign a statement. It was a confession, admitting he shoplifted. Ayalew refused.

Police arrived. They patted him down and checked his ID. They listened to both sides. Their ears perked up when Ayalew said he had a receipt for the coat at home. They waited while he dashed off to get it. When he returned, a Ross employee confirmed the receipt was legit.

That should have been that—along with, perhaps, an apology from the store for mistakenly accusing a customer of shoplifting.

But there was no apology. And no coat. After the cops left, the store wouldn't give it back. The agents told Ayalew they needed to hang onto the garment to further investigate the alleged shoplifting.

Confused, Ayalew left thinking they would see the error of their ways and send the coat back to him.

He waited a week. Then two. No coat.

Ayalew called police, who said it was a civil matter, and went to the store with an English-speaking friend, to no avail. Up against the might of a big chain store, Ayalew wondered if maybe he should forget the whole thing.

Except Ayalew couldn't get past the obvious: He hadn't stolen the coat from the store. The store stole it from him.

He contacted an attorney, Eileen Sussex, who had done legal work for other Ethiopians here. "To their community," Sussex says, "to have shoplifted is an embarrassment to all, you just don't do it." She went to the store with Ayalew. They promptly gave him the coat.

OK, so finally that's that, right? Hang on.

Two days after his coat arrived, so did a letter from Ross' corporate attorneys in California. Addressed to Ayalew, it said "My client's records indicate that you took possession of merchandise from the above store valued at $99.99, without the consent of my client, without paying for it."

The chain said it had decided Ayalew stole the coat. He owed them the original price, plus a $100 penalty.

Apparently it is corporate policy to send out such letters whenever anyone is accused of shoplifting at Ross' 400 U.S. stores. The intimidating letters, like the one Ayalew received, also come with the threat to pay or be sued.

Sue? That's that American way—and an English word Ayalew understood. Feeling bullied and wrongly accused, he and Sussex filed a lawsuit.

His attorney hit Ross with a kitchen sink of claims: assault, battery, false arrest, imprisonment, breach of contract, negligence, discrimination, and violations of the Consumer Protection Act.

Solo attorney Sussex, who delights in cases involving civil rights, also flooded Ross with requests for evidence from all its store operations regarding security and surveillance methods, interrogation and training procedures, and customer complaints similar to Ayalew's.

Ross responded to some requests and resisted others. The court ordered the chain to comply. It came back with more pages of information, though Ayalew's attorney thought a lot of it was unresponsive—routine training manuals and long, unspecific lists of customer names, for example. Ayalew's attorney thought Ross was stalling and filed an order demanding more evidence.

Ross said it had answered everything in good faith. The sides battled back and forth for months. Ayalew persisted, but the trial court limited his requests.

The store's attorneys, meanwhile, were inundating Ayalew with requests for evidence. They submitted long lists of questions, sought his immigration files and all his medical records, probed extensively into his religious practices, and deposed him in a two-day session.

The chain that racked up $2.7 billion in sales last year was playing hardball and winning. It notched a series of favorable pre-trial judgments from King County Superior Court Judge Phillip Hubbard—who then went on vacation just days before the trial.

After a three-day hearing before a new judge, a jury sided with Ross on the few remaining claims, which included false arrest and imprisonment.

Ayalew had lost. Maybe that should have been that, too. But Ayalew appealed. That was 1999.

Three weeks ago, Ayalew got the word: The State Court of Appeals found numerous trial court errors, decided there was "unjustified resistance to discovery" by Ross, and sent the case back for a new trial.

The appeals judges said full discovery of evidence regarding other shoplifting incidents was unfairly limited, resulting in sometimes "useless" responses by Ross that at times "served to delay, harass and increase the costs of litigation." The court also held that, should the trial court so decide, Ross could rightly be hit with legal penalties for resisting discovery.

Ayalew thus can continue his lawsuit on three of the original claims.

In a statement issued to Seattle Weekly last week, Ross indicates it will appeal the ruling.

"Ross Stores is proud of its record and does not discriminate in any way," the store says. The court affirmed "Ross Stores had a reasonable basis for detaining Mr. Ayalew, that Ross Stores treated Mr. Ayalew reasonably, and that Ross Stores released Mr. Ayalew in a reasonable amount of time." (It didn't say anything about releasing his coat on time.)

Only 17 percent of its customer complaints have alleged race discrimination, the store adds, stating the court "did not evidence discrimination in any way" (the appeals court said Ayalew might have made his argument for discrimination had he not been denied full discovery of evidence—one of the reasons the court reversed the case.)

Sussex, Ayalew's attorney, says her client is happy with the ruling and plans to fight on. He's working at a community college, where he also is studying English.

For sure, he's got one phrase down: "Can I have my coat back?" But it never seems to translate.

As the trial began, Ross demanded the coat be held as evidence. It's been in a box in the courthouse for almost three years. "It's like new," says the attorney.

randerson@seattleweekly.com

 
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